Republicans find a key problem in their states’ near-total abortion bans: some local prosecutors refuse to enforce them.
Republicans in Georgia, Indiana, South Carolina, and Texas have sponsored proposals that would allow state officials to either bypass local prosecutors or remove them from office if their abortion-related enforcement is deemed too mild.
In Texas, one of several measures being considered by lawmakers would allow the state attorney general or a private citizen to petition a court to remove a district attorney who declines to prosecute abortion-related felonies and other “crimes of violence.” They also intend to draught legislation that would allow any person to file a civil suit against anyone suspected of “aiding and abetting” an abortion.
Georgia lawmakers seek to establish a prosecutorial oversight board that would have the authority to penalise or remove local prosecutors who demonstrate a “willful and chronic failure to discharge his or her duties.”
A bill presented in the South Carolina House would grant the state attorney general the authority to prosecute abortion cases, which are presently handled by local district attorneys.
In Indiana, proposed legislation would empower a special prosecutor chosen by the legislature to enforce laws when a local prosecutor refuses to do so.
The rising conflict between Republican lawmakers and local prosecutors over abortion is part of a larger debate over opposing approaches to criminal justice, as evidenced in previous confrontations over drug laws, property crimes, and other offences. Conservative state officials believe they now need to rein in their excesses as more prosecutors, particularly in progressive metropolises in red states, win elections by breaking with the decades-long tough-on-crime ethos and running as a check on GOP lawmakers.
“Whatever issue we’re discussing — whether it’s marijuana, abortion, enforcing homicide statutes, enforcing whatever the law is — the law is on the books, and the law is supposed to be applied equally across the board among our citizens,” said Republican Indiana Sen. Aaron Freeman, the bill’s sponsor. “If we’re going to disrespect the Constitution and our republic and do whatever the hell we want, that’s a society that scares the hell out of me.”
Republicans are also considering nonlegislative strategies. In Florida, Gov. Ron DeSantis dismissed Hillsborough County State Attorney Andrew Warren, a Democrat, for publicly promising not to prosecute anyone under the state’s 15-week abortion restriction. Warren sought reinstatement in federal court, and while the judge agreed that DeSantis’ decision violated the state constitution, he held that only a state court could overturn the governor’s decision.
Local prosecutors are chafing at what they regard as an incursion on their executive branch authority, practises Warren has called “ridiculous” and “undemocratic.”
“There is a political war being waged against people who express their thoughts,” he explained.
Nonpartisan legal organisations see this tendency as a danger to prosecutors’ ability to exercise their best judgement in deciding which cases to pursue and how to deploy their offices’ limited resources to best serve the community that elected them.
“Our judicial system is built on the individual exercise of discretion. The legislatures have gone very overboard,” cautioned David LaBahn, president and CEO of the Association of Prosecuting Attorneys. “When we’re looking at a series of instances — and this is not hypothetical, it’s very real, because we’re dealing with backlogs in so many areas right now – should they investigate a phone call from someone saying they suspect someone had an abortion, versus a recorded homicide or case of child abuse? Should you put all of your resources into the first one if you have limited resources? Certainly not! That’s why you have the luxury of discretion.”
The flood of bills, according to LaBahn, also threatens the “jury standard,” which local prosecutors use to determine which cases they may reasonably expect to win at trial with a jury drawn from their community.
“And the threshold is not ‘a jury in Texas’s most conservative county,'” he said. “It’s a jury in the place where you were elected.”
Some district attorneys involved in this battle believe that there are no crimes to prosecute even if they wanted to, citing preliminary data showing that almost no doctor-administered abortions have occurred in their states since the laws went into force.
Others, on the other hand, believe they would refuse to hear a case even if there were violations of their state’s anti-abortion legislation. A month after Roe was overruled, more than 80 district attorneys from 29 states made a promise to “refrain from using scarce criminal legal system resources to punish personal medical decisions.”
Miriam Krinsky, a former federal prosecutor who oversees Fair and Just Prosecution, the organisation behind the promise, believes prosecutors have the authority to make that decision.
“They want to focus on major and violent crimes rather than investigating and prosecuting people making health-care decisions,” she explained. “They don’t want miscarriages to become crime scenes.”
However, Republican lawmakers and anti-abortion allies, many of whom believe abortion is murder, claim prosecutors are violating their oaths of office – and the separation of powers – by saying they will either not prosecute or will deprioritize prosecuting entire categories of crimes, rather than evaluating each case on its own merits.
Prosecutors could be fired under a plan sponsored by Texas Senator Mayes Middleton if they “categorically or routinely” refuse to press charges for certain offences, including abortion and various property and election-related felonies. Attorneys could also face sanctions if they do not “categorically or routinely” pursue the death penalty for serious offences.
“Whether they like it or not, it’s up to our district attorneys to enforce all of our laws,” Middleton said. “If they have a policy of not prosecuting violent crimes, including our anti-abortion laws, they are vulnerable to removal from office… This measure characterises abortion as a violent crime that takes a life.”
Republican politicians have suggested that DAs who are dissatisfied with their state’s legislation run for the Legislature rather than using their position as a check on lawmakers.
“I think we all need to sit down and watch ‘Schoolhouse Rock,'” Indiana Senator Joe Freeman stated.
Anti-abortion groups have banded together in support of the proposals targeting prosecutors, arguing that legislative bans are pointless unless backed up by the prospect of enforcement.
“A penalty is required to serve as a deterrence,” said Rebecca Parma, senior legislative associate for Texas Right to Life. “We see how the abortion industry is pivoting since Dobbs and we need to respond as a state to make sure abortion stays entirely illegal. We’re seeing groups illegally smuggled abortion pills into our state, as well as pill trafficking over the border. And there’s the issue of abortion ships right off our coast. People who illegally help and abet must be held accountable.”